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(Cite as: 1986 WL 238457 (Mont.A.G.))
Office
of the Attorney General
State
of Montana
*1
Opinion No. 76
July
30, 1986
ADOPTION--Effect of Indian Child Welfare Act on obligation to provide
child protection services and financial assistance;
CHILD CUSTODY AND SUPPORT--Effect of Indian Child Welfare Act on
obligation to provide child protection services and financial assistance;
DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES--Effect of Indian Child Welfare
Act on obligation to provide child protection services and financial
assistance; licensing of foster care homes on Indian reservations;
INDIANS--Effect of Indian Child Welfare Act on obligation to provide
child protection services and financial assistance; licensing of foster care
homes on Indian reservations;
LICENSES--Foster care homes on Indian reservations;
ADMINISTRATIVE RULES OF MONTANA--$Sections 46.5.603 to 46.5.607;
MONTANA CODE ANNOTATED--Sections 18-11-101 to 18-11-111, 41-3-301, 41-3-401 to 41-3-406;
UNITED STATES CODE--25 U.S.C. §§ 1901
to 1963; 42 U.S.C. §§ 601
to 676.
HELD:
1. The Montana Department of Social and Rehabilitation Services does
not have jurisdiction to provide child protection services to Indian
children subject to exclusive tribal jurisdiction under the Indian Child
Welfare Act or residing on the reservation and eligible for
tribal membership.
2.
The Montana Department of Social and Rehabilitation Services may not
make payments under Title IV-E of the Social Security Act
to Indian children whose foster care or adoption placement is
subject to exclusive tribal jurisdiction under the Indian Child Welfare
Act.
3.
The Montana Department of Social and Rehabilitation Services may not
provide child protection services and benefits funded solely by state
and local monies to Indian children whose foster care or
adoption placement is subject to exclusive tribal jurisdiction under the
Indian Child Welfare Act or who are eligible for comparable
assistance under Bureau of Indian Affairs programs.
4.
The Montana Department of Social and Rehabilitation Services may not
continue to provide child protection services or benefits to an
Indian child whose child custody proceeding has been transferred from
state district court to tribal jurisdiction under the Indian Child
Welfare Act.
5.
The Montana Department of Social and Rehabilitation Services has the
authority to license foster care homes maintained by nontribal members
on Indian reservations. The Department has the authority to license
foster care homes operated by tribal members on a reservation
only if the tribe does not engage in such licensing
activity.
David
Lewis
Director
Department
of Social and Rehabilitation Services
Room
301
SRS
Building
111
Sanders
Helena
MT 59620
Dear
Mr. Lewis:
You have requested my opinion concerning the responsibilities of the
Montana Department of Social and Rehabilitation Services (Department) with respect
to (1) the provision of child protection services and certain
benefits to Indian children and (2) the licensing of foster
care homes located on Indian reservations. Your specific questions are:
*2
1. Does the Department have jurisdiction to provide child protection
services to an Indian child residing or domiciled on his
tribe's reservation?
2. What are the Department's responsibilities with respect to the
provision of services and benefits under Title IV-E of the
Social Security Act, 42 U.S.C. §§ 671
to 675, to an Indian child residing or domiciled on
his tribe's reservation?
3. Does the Department have a responsibility to provide child
protection services, which are funded solely by state and local
monies, to an Indian child residing on a reservation and
eligible for assistance under Bureau of Indian Affairs programs?
4. Does the Department have a responsibility to continue provision
of child protection services to an Indian child residing and
domiciled off his tribe's reservation after a child custody proceeding
has been transferred pursuant to section 101(b) of the Indian
Child Welfare Act, 25 U.S.C. § 1911(b),
to that tribe?
5. Does the Department have jurisdiction to licensemember-maintained and nonmember-maintained
foster care homes located on an Indian reservation?
These questions raise largely unresolved issues requiring analysis of relevant
federal and state statutes, regulations, and decisional authority.
I.
The Department's child protection service responsibilities are varied but, for
present purposes, can be separated into those which involve temporary
or permanent separation of a child from his parents' custody
and those which attempt to further the child's best interests
without such separation. Representative of the first category are abuse,
neglect, or dependency proceedings which seek termination of the parents'
custodial rights; the second category involves services such as day
care and homemaker assistance which do not effect removal of
the child from parental custody. This distinction is significant because,
as developed below, the Indian Child Welfare Act, 25 U.S.C.
§§ 1901
to 1963 (1983) (ICWA), applies only to "child custody proceedings"
which are defined in section 4(1), 25 U.S.C. § 1903(1),
with reference to four kinds of individually described actions: (1)
"foster care placement" which means temporary placement in a foster
care home or institution or the home of a guardian
or conservator where the parent or Indian custodian cannot have
the child returned upon demand but where parental rights
have not been terminated; (2) "termination of parental rights" which
means any action resulting in termination of the parent-child relationship;
(3) "preadoptive placement" which means the temporary placement of an
Indian child in a foster home or institution after termination
of parental rights prior to or in lieu of adoption
placement; and (4) "adoptive placement" which means the permanent placement
of an Indian child for adoption, including any action resulting
in a final decree of adoption. The common element among
these four sub-terms is voluntary or involuntary separation of an
Indian child from the custody of his parents or Indian
custodian. Consequently, while certain of the Department's child protection service
responsibilities will be directly affected by the ICWA, others will
not. With respect to the second category of child protective
services, different analytical principles must be applied to determine the
Department's authority.
A.
*3
The ICWA was enacted in response to widespread concern over
the high incidence of removal by, inter alia, state agencies
of Indian children from their parents' or Indian custodians' custody
and placement into non-Indian environments. See 25 U.S.C. § 1901(4).
Its general purpose, as stated in section 3, 25 U.S.C.
§ 1902,
is "to protect the best interests of Indian children
and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards" governing
such removal and placement. See also H.R. Rep. No. 1386,
95th Cong., 2d Sess. 8 (1978); see generally In re
M. E. M., 195 Mont. 329, 333, 635 P.2d 1313,
1316 (1981). With respect to these proceedings, Title I of
the ICWA establishes two jurisdictional standards: (1) Indian tribes, as
opposed to the state, have exclusive jurisdiction over any child
custody proceeding (a) involving an Indian child who resides or
is domiciled within that tribe's reservation unless jurisdiction is vested
in the state by existing federal law or (b) any
Indian child who is a ward of a tribal court
irrespective of his residence or domicile; and (2) a state
court is required in any proceeding for the foster care
placement or termination of parental rights of an Indian child
not domiciled or residing within the reservation of that child's
tribe to transfer the proceeding to the tribe's jurisdiction, absent
good cause to the contrary or objection by either parent,
upon a parent's, an Indian custodian's or the tribe's petition,
subject to declination of the transfer by the tribe's court.
25 U.S.C. § 1911(a)
and (b). Indian children who are tribal court wards are
not at issue in this opinion. Before discussion of other
substantive aspects of Title I, the scope of exclusive tribal
jurisdiction over an Indian child, not already a tribal court
ward, under section 101(a), 25 U.S.C. § 1911(a),
must be clarified because it is a predicate for much
of the analysis below.
I recognize that a literal construction of section 101(a) may
indicate that a tribe has exclusive jurisdiction over any Indian
child residing or domiciled within its reservation. I further realize
that the ICWA is designed to restrict state, and not
tribal, jurisdiction in child custody proceedings. Nonetheless, section 101(a) must
be read in pari materia with section 101(b), 25 U.S.C.
§ 1911(b),
which permits the exercise of state court jurisdiction over an
Indian child "not domiciled or residing within the reservation of
the Indian child's tribe." When such a child is residing
on a reservation of a tribe other than his own,
precise application of section 101(b) invests the state court with
jurisdiction, subject to its notice and transfer provisions. This interpretation
of section 101(b), which directly militates against construing section 101(a)
as granting a tribe exclusive jurisdiction over nonmember Indian children
within its reservation, comports with clear legislative intent that the
child's tribe be given the opportunity to assume jurisdiction in
custody proceedings. It also comports with recent decisional authority suggesting
that a tribe's inherent sovereignty powers do not encompass broader
regulation of nonmember Indians than non-Indians. Montana v. United States,
450 U.S. 544, 564 (1980) ("in addition to the power
to punish tribal offenders, the Indian tribes retain their inherent
power to determine tribal membership, to regulate domestic relations among
members, and to prescribe
rules of inheritance for members"); Washington v. Confederated Tribes, 447
U.S. 134, 161 (1980) (because "nonmembers are not constituents of
the governing tribe[,] ... [f]or most practical purposes those Indians
stand on the same footing as non-Indians resident on the
reservation"); see also New Mexico v. Mescalero Apache Tribe, 462
U.S. 324 (1983). The ICWA's legislative history, moreover, reflected no
expansion of the sovereignty rights of one tribe as against
members of different tribes but, instead, indicated only that the
statute's jurisdictional standards paralleled extant case law; those decisions, in
turn, recognized exclusive tribal jurisdiction in child custody matters involving
the tribe's children domiciled on the reservation. H.R. Rep. No.
1386 at 21. While the issue is close, the most
sensitive reading of sections 101(a) and 101(b) supports the conclusion
that the former provision grants a tribe exclusive jurisdiction only
over children residing or domiciled on the reservation who are
members of or eligible for membership in that tribe or,
if members are eligible for membership in another tribe, have
the more significant contacts with the tribe asserting such jurisdiction.
See 25 U.S.C. § 1903(5).
I must emphasize, however, that the ICWA does not specifically
address the question of one tribe's jurisdiction over another tribe's
child and that the mere existence of possible state court
jurisdiction under section 101(b) does not, in itself, preclude a
tribe's exercise of jurisdiction over an Indian child not eligible
for membership in the tribe.
*4
Title I additionally establishes substantive and procedural standards for voluntary
consent to foster care placement or termination of parental rights
as to Indian children in state court proceedings and for
preferential adoption placement of such children into Indian families. 25
U.S.C. §§ 1913,
1915. State court jurisdiction over the emergency removal or placement
of an Indian child residing or domiciled on his tribe's
reservation is limited to those who are temporarily located off
the reservation; i.e., a state court has no such jurisdiction
over such a child when he is within the reservation.
25 U.S.C. § 1922.
See 124 Cong. Rec. 38,107 (Oct. 14, 1978) (statement of
Rep. Udall).
Viewed as a whole, Title I clearly circumscribes state court
authority to act in child custody proceedings. Exclusive tribal jurisdiction
attaches to those proceedings when the child resides or is
domiciled on his tribe's reservation, while state court jurisdiction, subject
to a parent's, an Indian custodian's, or the tribe's right
to request transfer, exists only if the child both resides
and is domiciled off the reservation. These provisions reflect an
intent by Congress to commit to tribal resolution the removal
of an Indian child from his parents' custody and placement
into an environment calculated to further his best interests. It
is important, however, to reiterate that the ICWA's recognition of
tribal primacy in such matters was preceded by court decisions
establishing the exclusivity of tribal jurisdiction in domestic relations matters
involving Indian children domiciled on their tribes' reservations. See, e.g.,
Fisher v. District Court, 424 U.S. 382 (1976) (per curiam)
(reversing state court determination that it had jurisdiction over adoption
proceeding in which all parties were tribal members domiciled on
Northern Cheyenne Reservation); Wisconsin Potowatomies v. Houston, 393 F. Supp.
719 (D. Mich. 1973) (tribe, rather than state probate court,
had authority to control custody and placement of Indian children
domiciled on reservation when probate court assumed jurisdiction); Wakefield v.
Little Light, 276 Md. 333, 347 A.2d 228 (1975) (state
court did not have jurisdiction over custody proceeding where Indian
child domiciled on Crow Reservation). Thus, even without reference to
the ICWA, compelling tribal sovereignty interests exist with respect to
Indian children, residing or domiciled within the reservation, who are
members or eligible for membership because of their parentage.
Montana statutes establishing the Department's child protection service responsibilities provide
a detailed procedure for effecting temporary or permanent termination of
parental or Indian custodian custody. Under section 41-3-301(1), MCA, a
departmental social worker may remove to a protective facility any
youth who is believed to be "in immediate or apparent
danger of harm." A petition for temporary investigative authority or
protective services must thereafter be filed within 48 hours "unless
arrangements acceptable to the[Department] for the care of the child
have been made
by the parents." § 41-3-301(3),
MCA. Such proceeding is initiated in state district court and
is prosecuted by the county attorney, the attorney general, or
a specially-retained attorney. § 41-3-402,
MCA. The Department may alternatively initiate an abuse, neglect, or
dependency action and request temporary custody or termination of, inter
alia, the parent-child legal relationship. § 41-3-401(10),
MCA. The latter proceeding may also be commenced by the
Department even though emergency protective services have not been provided.
In either proceeding the district court is vested with broad
powers to determine both the youth's need for protective services
or his abused, neglected, or dependent status and to fashion
relief consonant with his best interests. §§ 41-3-403,
41-3-406, MCA. These aspects of the Department's child protection service
responsibilities are, therefore, integrated into a detailed and comprehensive adjudicatory
scheme in which state district courts have jurisdiction. The Department's
authority to interfere with parental custody is unquestionably restricted by
that same scheme. See State ex rel. State Tax Appeal
Board v. Board of Personnel Appeals, 181 Mont. 366, 371,
593 P.2d 747, 750 (1979) ("administrative agencies are bound by
the terms of the statutes or regulations bringing them their
powers and are required to act accordingly"); City of Polson
v. Public Service Commission, 155 Mont. 464, 469, 473 P.2d
508, 511 (1970) ("[i]t is a basic rule of law
that the Commission , as an administrative agency, has only
those powers specifically
conferred upon it by the legislature").
*5
Natural application of the ICWA and Montana statutes controlling the
Department's authority to seek temporary or permanent termination of parental
or Indian custodian custody accordingly dictates a conclusion that the
Department may not provide such child protection services to Indian
children if exclusive tribal jurisdiction exists. Consequently, when a child
resides or is domiciled on his tribe's reservation, the Department
may not act. In that regard, I note that the
term "child custody proceeding" refers not only to judicial proceedings
but also to purely administrative actions such as, for example,
temporary or emergency removal of an Indian child from his
parents' or Indian custodian's custody. This construction of such term
is required by its definition in section 4(1) of the
ICWA, 25 U.S.C. § 1903(1),
and by legislative history establishing that, as initially proposed, the
statute used the term "child placement" which was, in part,
defined as "any proceedings, judicial, quasi-judicial, or administrative" in nature.
See 123 Cong. Rec. 9995 (Apr. 1, 1977) (original text
of S. 1214, 95th Cong., 1st Sess. § 4(g)
(1977)); S. Rep. No. 597, 95th Cong., 1st Sess. 2
(1977) (reporting out S. 1214 which was introduced as H.
R. 12533, 95th Cong., 2d Sess. (1978)); H.R. Rep. No.
1386 at 19. Although amendments to H.R. 12533, which eventually
served as the basis for the ICWA, changed the term
"child placement" to "child custody proceeding," the purpose of the
modification was to eliminate perceived ambiguity
in the former term "with respect to the various provisions
of the bill" but, quite obviously, not to limit its
scope to purely judicial proceedings. H.R. Rep. No. 1386 at
19-20; see 124 Cong. Rec. 38,102 (Oct. 14, 1978) (statement
of Rep. Udall). Any other result creates a significant void
in the ICWA's coverage inimical to its very purpose. Moreover,
were the ICWA inapplicable to purely administrative actions or proceedings
by states, section 122, dealing with emergency removals or placements,
would have been drafted far differently. That section is clearly
intended as a highly restricted exception to exclusive tribal jurisdiction
under section 101(a) when an Indian child is temporarily off
his tribe's reservation although residing or domiciled thereon. Since, as
indicated by section 41-3-301, MCA, such emergency removals may well
be necessary before a judicial proceeding can be commenced, the
limited exception to section 101(a) would be meaningless if the
term "child custody proceeding" did not encompass purely administrative actions.
Lastly, the ICWA does authorize state and tribal agreements "which
may provide for orderly transfer of jurisdiction on a case-by-case
basis and agreements which provide for concurrent jurisdiction between States
and Indian tribes." 25 U.S.C. § 1919(a).
The Department is, under the State-Tribal Cooperative Agreements Act, §§ 18-11-101
to 111, MCA, authorized to enter into such agreements. Although
none has been reached in Montana, they provide a method
for the Department to perform child protection services, which constitute
a child custody proceeding under the ICWA, with respect to
an Indian child residing or domiciled on his tribe's reservation.
B.
*6
Whether an Indian child residing on his tribe's reservation is
within the Department's jurisdiction for the purpose of receiving protective
services, which do not constitute a child custody proceeding under
the ICWA, is subject to different analytical standards. These standards
were summarized in White Mountain Apache Tribe v. Bracker, 448
U.S. 136, 142-43 (1980):
Congress has broad power to regulate tribal affairs under the
Indian Commerce Clause. ... This congressional authority and the "semi-independent
position" of Indian tribes have given rise to two independent
but related barriers to the assertion of state regulatory authority
over tribal reservations and members. First, the exercise of such
authority may be pre-empted by federal law. ... Second, it
may unlawfully infringe "on the right of reservation Indians to
make their own laws and be ruled by them." ...
The two barriers are independent because either, standing alone, can
be a sufficient basis for holding state law inapplicable to
activity undertaken on the reservation or by tribal members. They
are related, however, in two important ways. The right of
tribal self-government is ultimately dependent on
and subject to the broad power of Congress. Even so,
traditional notions of Indian self-government are so deeply engrained in
our jurisprudence that they have provided an important "backdrop," ...
against which vague or ambiguous federal enactments must always be
measured. [Citations omitted.]
See Rice v. Rehner, 463 U.S. 712, 718-20 (1983). The
Court later observed that, "[w]hen on-reservation conduct involving only Indians
is at issue, state law is generally inapplicable, for the
State's regulatory interest is likely to be minimal and the
federal interest in encouraging tribal self-government is at its strongest."
448 U.S. at 144.
Because the purpose of child protection services is to further
a child's best interests, a child's on-reservation residence and eligibility
for tribal membership or actual membership are decisive factors in
determining the scope of the Department's regulatory authority. As indicated
by the ICWA, its legislative history and antecedent decisions, tribes
have a uniquely important sovereignty interest in matters affecting the
viability of their members' parent-child relationships. Indeed, the ICWA has
been criticized for not expressly restricting state involvement prior to
actual removal of a child from parental custody. Barsh, The
Indian Child Welfare Act of 1978: A Critical Analysis, 31
Hastings L.J. 1287, 1306 (1980). The ICWA's limited scope in
this regard, however, can hardly be construed as implicit congressional
approval of state agency jurisdiction when a "child custody proceeding"
is not present.
Not only would such a conclusion run contrary to the
notion that, as to reservation intra-tribal affairs, a tribe is
invested with substantial autonomy, but it would also be inconsistent
with the ICWA's underlying purpose of protecting on-reservation tribal family
structure from often ill-considered state action. See Merrion v. Jicarilla
Apache Tribe, 455 U.S. 130, 168-71 (1982) ("[t]he Court has
been careful to protect the tribes from interference with tribal
control over their own members"); Santa Clara Pueblou v. Martinez,
436 U.S. 49, 72 (1978) (refusing to recognize a federal
cause of action to protect rights created by Title I
of the Indian Civil Rights Act of 1968, 25 U.S.C.
§§ 1301
to 1303, because such right might "substantially interfere with a
tribe's ability to maintain itself as a culturally and politically
distinct entity"). Moreover, "[r]epeal by implication of an established tradition
of immunity or self-governance is disfavored." Rice v. Rehner, 463
U.S. at 720.
*7
The Department's authority to provide child protection services not constituting
a child custody proceeding under the ICWA, therefore, does not
extend to an Indian child residing on his tribe's reservation.
The affected tribe, instead, has exclusive jurisdiction over and responsibility
for the child. However, the State-Tribal Cooperative Agreements Act does
authorize the Department to enter into agreements with tribes concerning
the provision of such services. It must be underscored that,
absent an agreement to the contrary,
the Department cannot be required by tribal court order to
provide services since those courts have no inherent jurisdiction over
it.
II.
Title IV of the Social Security Act, 42 U.S.C. §§ 601
to 676 (1983), authorizes grants to states for aid to
needy families with children and for child-welfare services. Part E
to Title IV was enacted by Pub. L. No. 96-272,
94 Stat. 501 (1980), and extends federal financial assistance to
states with approved plans for foster care and adoption assistance,
foster care maintenance payments, and adoption assistance programs. 42 U.S.C.
§§ 671
to 673. Montana formulated a state plan which, in turn,
has been approved by the Health and Human Services Department.
The plan makes no reference to the several Indian reservations
in this state, nor does it specifically discuss the provision
of Title IV-E funds to Indian children. Title IV-E and
its associated federal administrative regulations are similarly silent.
42 U.S.C. § 672(a)
permits states with approved plans to make foster care maintenance
payments if certain conditions are met. Paragraph 2 of those
conditions requires that the involved child's "placement and care [be]
the responsibility of (A) the State agency administering the State
plan approved under section 671 of this Title, or (B)
any other public agency with whom the
State agency administering or supervising the administration of the State
plan approved under section 671 of the this Title has
made an agreement which is still in effect." As developed
above, however, foster care placements are, with respect to an
Indian child residing or domiciled on his tribe's reservation, matters
outside the Department's statutory responsibility and vested within the affected
tribe's exclusive jurisdiction. Since there can be no reasoned argument
that the 1980 amendments establishing Title IV-E extend such authority
to the states, I must conclude that, by operation of
the ICWA, the Department is not responsible for making foster
care maintenance payments on behalf of such a child. The
Department, moreover, is not required by Title IV-E to enter
into agreements with tribally-controlled agencies which may have responsibility for
an Indian child's placement or care. Native Village of Stevens
v. Smith, 770 F.2d 1486, 1488-89 (9th Cir. 1985), cert.
denied, 106 S. Ct. 1640 (1986).
The adoption assistance program in 42 U.S.C. § 673
does not contain a provision comparable to 42 U.S.C. § 672(a)(2).
Nonetheless, it does necessitate substantial state involvement in various adoption-related
decisions, some of which rest exclusively with an Indian child's
tribe under the ICWA if he resides or is domiciled
on its reservation. The state agency must thus decide whether
the involved child is one with "special needs." That designation
requires the agency to determine that (1) "the child cannot
or should
not be returned to the home of his parents"; (2)
"there exists with respect to the child a specific factor
or condition ... because of which it is reasonable to
conclude that such child cannot be placed with adoptive parents
without providing adoption assistance"; and (3) "a reasonable, but unsuccessful,
effort has been made to place the child with appropriate
adoptive parents without providing adoption assistance." 42 U.S.C. § 673(c).
A state's ability to make these often difficult determinations clearly
rests upon a high degree of administrative involvement in child
custody proceedings and an independent evaluation of the results of
such proceedings. Such involvement and evaluation are directly contrary to
the exclusivity of tribal jurisdiction under section 101(a) of the
ICWA, 25 U.S.C. § 1911(a).
*8
Finally, the Department cannot be required by tribal court order
to make foster care maintenance or adoption assistance payments. As
stated above with respect to provision of child protection services,
tribal courts have no inherent jurisdiction over the Department, and
thus any responsibility to make such payments for an Indian
child residing on his tribe's reservation arises only after appropriate
agreements under section 104 of the ICWA, 25 U.S.C. § 1919,
and 42 U.S.C. § 672(a)(2)
have been concluded.
III.
The response to your third question is partially controlled by
the analysis above in connection with the first. The Department
does not have authority to provide child protection services, which
constitute a child custody proceeding under the ICWA, to an
Indian child residing or domiciled on his tribe's reservation. It
further does not have authority to provide such services, which
do not constitute a child custody proceeding under the ICWA,
to an Indian child who resides on his tribe's reservation.
The scope of such responsibility is unaffected by the child's
eligibility, or lack thereof, for participation in Bureau of Indian
Affairs programs.Furthermore, in those instances where an Indian child is
not subject to exclusive tribal jurisdiction but is eligible for
Bureau of Indian Affairs programs, the Department is not obligated
to provide child protective services and benefits to the extent
the federal program offers comparable assistance. See McNabb v. Heckler,
628 F. Supp. 544 (D. Mont. 1986).
IV.
Once a proceeding has been transferred to tribal jurisdiction under
section 101(b) of the ICWA, 25 U.S.C. § 1911(b),
such jurisdiction is exclusive and forecloses provision of child protection
services by the Department for those reasons discussed under Part
I.A above. Because tribal courts have the discretion
under section 101(b) to decline jurisdiction over a proposed transfer,
the district court's notice of transfer should include a stated
period of time within which declination should be affirmatively indicated.
The Department of the Interior recommends that the period be
established at not less than 20 days. Guidelines for State
Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,592
(1979). During such period the Department should continue to provide
child protection services unless, prior to its expiration, the tribal
court acts to assume jurisdiction.
V.
The Department has promulgated regulations governing the licensure of youth
foster homes to which Part IV-E referrals and payments are
made. §§ 46.5.603
to 46.5.607, ARM. Because the Department may make such referrals
and payments to foster homes within a reservation in instances
when the tribe does not have exclusive jurisdiction under the
ICWA, the question of whether the Department can impose its
licensing regulations is not merely a theoretical concern.
First, if the foster home has been tribally licensed, section
201(b) of the ICWA, 25 U.S.C. § 1931(b),
requires that, for Part IV-E or other federally-assisted programs, the
tribal license "be deemed equivalent to licensing or approval" by
the Department. Second, foster care homes of nontribal members, not
tribally-licensed, clearly fall within the Department's licensing jurisdiction because, as
developed above, the Department will normally have no responsibility for
placing into those homes children who are members or eligible
for membership in the tribe; consequently, no tribal interest is
directly affected. Last, while licensing of foster homes maintained by
tribal members will affect the tribe's sovereignty interests since on-reservation
regulation of its members is involved, the Department should make
licensing available to such members unless tribally-established procedures exist for
licensure. If those procedures exist, the Department should request tribal
members to secure the requisite license through the tribe and
be bound by the eventual tribal determination. If no licensing
procedures exist, the Department should process the license request in
accordance with its administrative rules.
*9
THEREFORE, IT IS MY OPINION:
1. The Montana Department of Social and Rehabilitation Services does
not have jurisdiction to provide child protection services to Indian
children subject to exclusive tribal jurisdiction under the Indian Child
Welfare Act or residing on the reservation and eligible for
tribal membership.
2. The Montana Department of Social and Rehabilitation Services may
not make payments under Title IV-E of the Social Security
Act to Indian children whose foster care or adoption placement
is subject to exclusive tribal jurisdiction
under the Indian Child Welfare Act.
3. The Montana Department of Social and Rehabilitation Services may
not provide child protection services and benefits funded solely by
state and local monies to Indian children whose foster care
or adoption placement is subject to exclusive tribal jurisdiction under
the Indian Child Welfare Act or who are eligible for
comparable assistance under Bureau of Indian Affairs programs.
4. The Montana Department of Social and Rehabilitation Services may
not continue to provide child protection services or benefits to
an Indian child whose child custody proceeding has been transferred
from state district court to tribal jurisdiction under the Indian
Child Welfare Act.
5. The Montana Department of Social and Rehabilitation Services has
the authority to license foster care homes maintained by nontribal
members on Indian reservations. The Department has the authority to
license foster care homes operated by tribal members located on
a reservation only if the tribe does not engage in
such licensing activity.
Very
truly yours,
Mike
Greely
Attorney
General
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